If a third party harasses an employee, will the employer be liable for the third party's actions under the Equality Act 2010?

An employer will not currently be liable under the Equality Act 2010 for harassment of its employees by a third party (for example, a client or supplier).

If an employer fails to take action in response to complaints about a third party, the employer itself could be found to have harassed the employee if the failure to act was because of a protected characteristic. For example, trivialising a female employee's complaints about third-party sexual harassment and taking no action to prevent it could in itself amount to harassment.

Employees who have been subjected to harassment by a third party may be able to bring a constructive dismissal claim against their employer, if they resign and claim that the employer's failure to protect them amounts to a breach of contract. An employer could also be liable for negligence if the employee suffered mental and/or physical injury because of harassment by a third party that the employer could reasonably have foreseen and prevented or reduced. 

A new positive duty on employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment comes into force from 26 October 2024. Arguably this includes prevention of harassment by third parties. The Equality and Human Rights Commission will be able to take enforcement action against an employer in relation to the new duty. 

The Labour Government has said, in its pre-election Plan to make work pay, that it intends to require employers to "maintain workplaces...free from harassment, including by third parties" and that it will strengthen the duty to prevent sexual harassment. The detail of these additional measures, and when they will be brought into effect, is not yet known.

Employers should ensure that they continue to take all reasonably practicable steps to prevent any harassment of employees.